Though many thought the Supreme Court spoke with finality on expert testimony admissibility with Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the court has revisited the issue six years later. The issue arose again due to academic debates as to whether Daubert applied to all expert testimony or only to "scientific" expert testimony, due to Daubert's "scientific" focus.

Fortunately, these academic debates appear over, due in part to a tire blowout that led to the recent Supreme Court decision in Kumho Tire Company v. Carmichael, No. 97-1709, 1999 WL 152275, U.S. __ (March 23, 1999). In light of Kumho's ruling, practitioners should re-evaluate their use of experts and, specifically, the testimony and methodology the expert plans to offer. In short, Kumho restated Daubert in an easy-to-understand, global application.

Brief History of the Admissibility Standard of Expert Testimony

To understand Kumho's impact, one must first understand the expert testimony dichotomy, which started in 1923 with Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Frye, the then District of Columbia Court of Appeals held that expert testimony is inadmissible unless the relevant scientific community generally accepts the expert's techniques and/or methodologies as reliable. Frye, 293 F. at 1014. Though focusing on reliability, Frye gave birth to a 70-year "generally accepted" precedent.

However, during that 70-year period, Congress enacted the Federal Rules of Evidence. Among these new federal rules was Rule 702, which states that "if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, expertise, training or education may testify thereto in the form of an opinion or otherwise." Fed. R. Evid. 702. Noticeably absent from Rule 702 is the "generally accepted" standard. Thus, an issue arose as to Frye's applicability after the adoption of Rule 702.

Due to this issue, in 1993, the Supreme Court issued Daubert, which changed the standards for expert testimony admissibility. In Daubert, the Supreme Court held that Rule 702 superseded Frye, and therefore, the "generally accepted" test no longer applied. Daubert, 509 U.S. 579, 588. Since the "generally accepted" test no longer applied, the court held that "the trial court must insure that any and all scientific testimony is not only relevant, but reliable." Daubert, 509 U.S. at 589.

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...experts testifying outside the normal bounds of their expertise are subject to objection and exclusion...

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To determine reliability, the court listed certain factors for consideration, including (a) whether the methodology can be and has been tested, (b) the peer review and publication of the methodology, (c) the potential rate of error and existence of controlling standards, and (d) the methodology's acceptance in the relevant scientific community. Daubert, 509 U.S. at 594. Thus, although the court held that Rule 702 abolished Frye, the court preserved "community acceptance" as a factor. The court therefore subjected expert testimony to a more flexible test, thereby delegating control to the trial judge as "gatekeeper" to ensure reliability.

While setting forth the gatekeeper role and new reliability standards, the Supreme Court focused on a specific fact pattern and ignored hypothetical questions, as all courts should. Specifically, Daubert focused on expert testimony regarding Bendectin's tendency to cause birth defects. Thus, due to the facts of the case, the court repeatedly used the word "scientific," and did not address non-scientific expert testimony.

The focus on "science" caused many to question Daubert's applicability, not to mention its factors, which appeared tailor-made for "junk science." Thus, particularly in bankruptcy court, few Daubert objections occurred because many thought Daubert inapplicable. However, a closer examination of Daubert reveals its applicability to all expert testimony. This general applicability means that Daubert may prove a useful tool against those who proffer "unreliable" expert testimony. Such general applicability makes sense because science is a relative term without true definition. Indeed, one man's science is another man's art, and yet another's technical or specialized knowledge.

The Kumho Tire Co. Case

Such academic debates set the stage for Kumho, whose facts are quite simple. In Kumho, Patrick Carmichael's car blew a tire and overturned, killing one passenger and severely injuring others. The survivors and the decedent's representative claimed that the Kumho-made tire was defective. The plaintiffs based their claims upon the testimony of their expert tire failure analyst, who testified that a manufacturing defect caused the blow-out. Though the expert's testimony is irrelevant for this discussion, the defense objected based upon Rule 702 and Daubert's reliability requirement.

The trial court sustained the objection but questioned whether the testimony was scientific or technical in nature. On rehearing, the trial court stated that Daubert should be applied flexibly because its factors are simply illustrative and, therefore, other factors may apply against or in favor of admissibility. However, the court affirmed its earlier ruling based on insufficient indications that the methodology used by the expert was reliable.

The Eleventh Circuit reversed the trial court's decision, finding error as a matter of law in applying Daubert. The Supreme Court reversed the Eleventh Circuit and issued the now-controlling opinion on expert testimony in federal courts.

Kumho's Holding

In reversing the Eleventh Circuit, the Supreme Court held that Daubert applies to the testimony of all experts, even though not technically "scientists," because Rule 702 contemplates a universal gatekeeping obligation for all experts. Kumho Tire Co. v. Carmichael, No. 97-1709, 1999 WL 152275 at *5, __ U.S. __ (March 23, 1999). Since Rule 702 does not distinguish between scientific and technical or other specialized knowledge, and makes clear that any knowledge may be the subject of expert testimony, the court held that the reliability standard, and therefore the gatekeeper obligation, must apply to all matters within Rule 702's scope. Kumho, 1999 WL 152275 at *5.

After all, it is the rules, not the words, that modify "knowledge," and although Daubert repeatedly referred to "science," such references were due to the nature of the expertise at issue. Kumho, 1999 WL 152275 at *5. Moreover, based upon the impossibility of administering evidentiary rules under the gatekeeping obligation while distinguishing between scientific and other specialized knowledge, and since no clear line exists from one to the other, the court held that no such standard could exist. Id. Therefore, the court stated that Daubert applies in all expert testimony matters. Id.

Further, the court stated that the reliability determination may be based upon more than Daubert's specific factors. Kumho at *6. Daubert's factors were meant to be flexible because they may or may not be pertinent in assessing reliability, depending upon the nature of the specific expertise. Id. Since expertise can vary widely, the court held that they could never rule out nor rule in the applicability of Daubert's specific factors for all cases. Id.

Thus, while some may say that Kumho modifies Daubert, the court actually reinforced and reinstated Daubert's delegation of the "gate keeping" function to the trial court. This delegation requires the trial court to actively insure the reliability of expert testimony by requiring experts to base their testimony upon professional studies or experience at the same level of intellectual rigor as if in the relevant field.

Simply put, and as the court summarized, Rule 702 grants discretionary authority to determine reliability in light of the particular facts and circumstances, based upon factors too numerous to articulate. Kumho, 1999 WL 152275 at *6-7.

Kumho's Impact

Due to the variance of experts and factors upon which to consider reliability, Kumho's impact is far-reaching. Every time an expert is called to the stand, his or her testimony is subject to Kumho, and thus Daubert, in that the trial court has the obligation to ensure reliability. To the practitioner, the obligation to ensure reliability means two things.

First, when hiring an expert and reviewing the proposed testimony, consider the expert's methodologies. Particularly, make sure that the expert bases the proposed testimony on theories and methodologies that are well-grounded and reliable in the applicable field. Similarly, avoid using experts who propose testimony based upon novel or unfamiliar theories, as a Rule 702 objection may prevent admission of such testimony.

Second, keep Rule 702's reliability requirement in mind when opposing experts testify. For example, if the opposing expert attempts to base his appraisal of real estate upon methodologies that are ludicrous and non-sensical, object to such testimony as unreliable. After all, unreliable testimony is inadmissible under Rule 703, Daubert and Kumho.

However, this is not to say that Kumho and Daubert issues arise in every case. After all, an accountant using GAAP principles uses reliable methodology to which one should not object. The reliability requirement will not necessarily affect appraisers, accountants and other experts who testify within the normal bounds of their expertise, using reliable methods. However, experts testifying outside the normal bounds of their expertise are subject to objection and exclusion, thereby allowing the trial court to limit expert testimony to that which it finds reliable.